Bobby asks: > Perhaps Howard can elaborate on the > relationship between "Great Man" theories and obscuring the "political > determinants of > constitutional decision-making within courts." And perhaps Howard or Keith > (or > both) could explain how judicial supremacy "may be better understood by > looking at the actions of politicians outside the judiciary" than "at the > courtsthemselves." In particular, does this view suggest that judicial > supremacycauses or is the effect (or both) of politicians outside the > court?
On "Great Man" theories obscuring the political determinants of constitutional decision-making within courts: the point is just that if our analytic focus is on a particular judicial personality (whether Marshall or Taney or Warren or Rehnquist) we will tend to find explanations of what the Court does based on the individual ideologies or constitutional views of those judges, and we might leave out the larger political process by which those views were planted on the Court in the first place. Thus, Marshall is credited, or blamed, for asserting/establishing a certain conception of judicial power, and we forget to pay attention to others who had an interest in Marshall's agenda and provided the necessary support for that agenda. On politics and judicial supremacy: the assumption (not always right) is that courts (in the aggregate) tend to have the amount of power that governing elites want them to have. (This is especially true in the U.S. federal judiciary, where the judiciary is staffed by party leaders rather than by some sort of civil service process.) When courts are not playing an especially strong role in the system it is because other powerholders don't want to give judges that much power. When courts are more involved in governing it is because other powerholders find it useful to delegate such authority to judges. (This is the tricky part to follow -- why would elected powerholders want to give up some control over policymaking? The key is to figure out the political advaantages to elected powerholders to "delegate" power to others -- judges, bureaucrats, Federal reserve officials, etc.) Federal courts were relatively weak in the U.S. before the Civil War because elected powerholders wanted them weak; thus, federal courts were given jurisdiction over a very small number of cases (with most other cases being channeled into state courts). The post-Reconstruction Republican Party had a political agenda that required a more active role for a conservative judiciary (to promote a certain kind of economic nationalism) and so they passed the Judiciary Act of 1875 to give federal courts a larger role in the political system. (Shameless plug: see Gillman, “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891,” American Political Science Review 96 (2002):511-524.) Once you start looking for political support for judicial empowerment you start seeing it everywhere. Keith Whittington has done very good work on the political context within which other powerholders might want to support (or challenge) the idea of "judicial supremacy." See, for example: "The Political Foundations of Judicial Supremacy," in Constitutional Politics: Essays on Constitution Making, Maintenance and Change. Sotirios A. Barber and Robert P. George, eds. Princeton: Princeton University Press, 2001. "'To Support this Constitution': Judicial Supremacy in the Twentieth Century," in Marbury v. Madison: Documents and Commentary. Mark A. Graber and Michael Perhac, eds. Washington, D.C.: CQ Press, 2002. "Legislative Sanctions and the Strategic Environment of Judicial Review," I.Con: The International Journal of Constitutional Law 1:3 (July 2003): 446-474. Of course, it complicates the idea of "judicial supremacy" to think of it as something that is (sometimes, in part) desired by elected officeholders (cf. "Federal Reserve supremacy"), but that's the fun part of the work. Howard Gillman USC
